Updates & Developments in Construction Law 2013 – 23 January 2013

Moon Kua
L&S Contract Advisory & Dispute Management Services Pte Ltd

Kicking off the SCL(S) 2013 calendar, the Chairman, Anil Changaroth, welcomed more than 140 participants to its highly successful annual event which has now become a rooted tradition for the SCL(S).

The event, chaired by Mr Christopher Nunns, saw the invited speakers, Mr Edwin Lee (Eldan Law LLP) and Mr Raymond Chan (Chan Neo LLP), whisk the audience through an impressive tour of a number of important cases relating to the construction field.



Edwin commenced by reviewing the cases on the Building and Construction Industry Security of Payment Act (“the SOP Act”). He briefly discussed the positions prior to December 2012;  the Court of Appeal’s decision in Chua Say Eng (“CSE”) that the limitation period does not apply to the service of payment claims. Challenges to the jurisdiction of the adjudicator would also now have to be made in the court; the case of RN & Associates v TPX Builders demonstrated that courts would not support the setting aside of an adjudication determination which should properly be the subject of an adjudication review; and in JFC Builders v Lion City Construction, the High Court ruled that a claimant is precluded from making repeat claims. Although the Court of Appeal in CSE did not endorse this position, no reasons were given as the facts of CSE did not involve a repeat claim. The issue of repeat claims therefore remains a vexed subject as to whether the Court of Appeal’s dicta in CSE or the position by the lower court in JFC Builders which was delivered after the CSE’s judgement should be followed. Edwin concluded his presentation with some take home points for both the claimant and respondent.



Raymond covered the cases on performance bond and those relating to professional negligence. The Court of Appeal in BS Mount Sophia v Join Aim restated the legal principles for restraining a call on a performance bond and emphasised that the courts’ discretion to grant an injunction should not be lightly given unless the entire context of the case has been thoroughly considered. The case of Store+Deliver+Logistics Pte Ltd v Chin Siew Gim concerned a claim by the employer against the architect for breach of professional duties. The court held that the architect is liable to the employer for damages for late completion of the works but limited the employer’s recovery to losses which could be proven. This principle could similarly be extended to the situation where the delay in obtaining the TOP or CSC could be attributed to the acts or omissions of an architect or the design consultants. This raised some concerns from the floor on whether the architect in this instance could in turn bring an action against the relevant authorities! The other point to note is for experts involved in disputes relating to building defects, courts would not be quick to adopt an expert report which contains merely an estimate of the rectification costs without further particularization of the cause of defects and party liable for such defects. Last but not least, the presentation ended with Tan Juay Pah v Kimly Construction Pte Ltd where the court pronounced that the authorized examiner did not owe any duty of care to the main contractor and as such, he is under no obligation to indemnify the sub-contractor for the loss and damage of a workplace accident arising from the breach of his professional obligations under the Workplace Safety and Health Act.